Westmoreland v. The State.Williams

• Decision Date: 26 July 2010
• Docket Number: S10A0367.,No. S10A0365,S10A0365
• Citation: 287 Ga. 688,699 S.E.2d 13
• Parties: WESTMORELANDv.The STATE.Williamsv.The State.
• Court: Georgia Supreme Court

287 Ga. 688

699 S.E.2d 13

WESTMORELAND

v.The STATE.

Williams

v.The State.

Nos. S10A0365, S10A0367.

Supreme Court of Georgia.

June 28, 2010.

Reconsideration Denied July 26, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wallace C. Clayton, II, Jones, Morrison & Womack, Atlanta, for appellant in S10A0365.

Edwin J. Wilson, Snellville, for appellant in S10A0367.

Patrick H. Head, Dist. Atty., Jason R. Samuels, Dana J. Norman, Erman J. Tanjuatco, Amelia G. Pray, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Benjamin H. Pierman, Asst. Atty. Gen., for appellee.

THOMPSON, Justice.

Amos Westmoreland and John Edgar Williams were jointly indicted, tried, and convicted of felony murder and various other crimes following a crime spree that resulted in the vehicular death of Barbara Turner Robins.¹ In these consolidated cases, both defendants appeal from the denial of their respective motions for new trial. For the reasons that follow, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that on the morning of May 17, 2007, homes belonging to Alison Murphy and Jeanne and George Wern were burglarized in Marietta, Georgia. Among the numerous items taken were jewelry and a large screen television set.

That morning a neighbor driving in the vicinity of the Wern home observed two young males in a blue, older model station wagon, with a blue tarp tied to the roof, and no license plate displayed. The neighbor became suspicious and followed the car. She observed it minutes later parked in the Werns' driveway; the car doors were open and no occupants were visible inside. The police were notified and a marked patrol car arrived in the area as the blue station wagon was leaving the neighborhood. The officer activated his blue emergency lights and siren in an effort to stop the vehicle; however, the driver of the station wagon failed to accede to the officer's signals, and instead drove his vehicle onto Interstate 575 northbound. Additional patrol cars joined in pursuit. The driver of the station wagon continued his attempt to elude the police, and in the process, a large screen television taken from the Wern home dislodged from under a tarp on the roof and crashed onto the roadway. After the police attempted a box maneuver to stop the fleeing vehicle, the station wagon executed a U-turn in the median and drove into the southbound lanes of Interstate 575 where it collided with a Buick being driven by Robins and occupied by four passengers. The Buick rolled over twice and landed on its side, killing Robins and seriously injuring the front seat passenger.² Both the driver and passenger in the station wagon fled on foot and were pursued by the police and soon apprehended. Georgia identification cards in the pockets of both suspects identified the driver as appellant Westmoreland and the passenger as appellant Williams. Items taken from the two burglarized homes were found in their possession as well as in the station wagon.

Case No. S10A0365

1. Westmoreland submits that the evidence adduced at trial was insufficient to prove felony murder because the death of the victim was not committed “in the commission” of the burglary, but after the burglary was completed and he was attempting to flee.

“A homicide is within the res gestae of the underlying felony for the purpose of the felony-murder rule if it is committed while fleeing the scene of the crime. [Cit.] The weight of authority holds that the underlying felony continues during the escape phase of the felony if there is continuous pursuit immediately organized, and the felony terminates at the point the perpetrator has arrived at a place of seeming security or when the perpetrator is no longer pursued by the authorities. [Cits.]” Collier v. State, 244 Ga. 553, 560(3), 261 S.E.2d 364 (1979).

Horton v. State, 249 Ga. 871, 878(11), 295 S.E.2d 281 (1982). Here the perpetrators were observed in the area of the burglaries, their vehicle was parked at one of the burglarized homes shortly thereafter, and the police maintained continuous observation of the vehicle as it left the neighborhood and throughout the time that the occupants caused the death of the motorist and were subsequently apprehended. Thus, the homicide is within the res gestae of the underlying felony of burglary for the purpose of the felony-murder rule. Collier v. State, supra, overruled on other grounds in Thompson v. State, 263 Ga. 23(2), 426 S.E.2d 895 (1993). See also Diamond v. State, 267 Ga. 249(2), 477 S.E.2d 562 (1996) (where police chase began at the scene of the burglary and continued until defendant crashed her vehicle into another vehicle fatally injuring its three occupants, the burglary is ongoing for purposes of the felony murder rule; “ [t]o adopt [the] argument that the burglary was complete when [defendant] left the dwelling house would eliminate burglary as an underlying felony except when the murder occurs in the building that the person enters without authority”).

We further reject Westmoreland's assertion that the evidence was insufficient to support his convictions because the vehicle pursuit in this case violated Cobb County Police Department policy and was an intervening cause of the collision. See OCGA § 40-6-6(d)(1) (the driver of an emergency vehicle in pursuit of a suspected violator is authorized to disregard certain specified rules of the road; however, the statute does “not relieve the driver of ... the duty to drive with due regard for the safety of all persons”). First, the policy alluded to was not presented to the jury and is not contained in the record on appeal. Accordingly, that material does not factor into our evidentiary review. See Thompson v. State, 277 Ga. 102(1), 586 S.E.2d 231 (2003). Nonetheless, under OCGA § 40-6-6(d)(2), when a law enforcement officer is pursuing a fleeing suspect in another vehicle and the suspect injures or kills any person during the pursuit, the “officer's pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death ... unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures.” ³ And even where such reckless disregard exists, it “shall not in and of itself establish causation.” Id.

The evidence was ample for any rational trier of fact to find Westmoreland guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Westmoreland asserts that the trial court abused its discretion because it improperly abridged his right to cross-examine one of the investigating officers concerning Cobb County's vehicle pursuit policy. When the question as to the content of the written policy was posed on cross-examination, the State objected on relevancy grounds, arguing that the issue before the court is whether appellants attempted to flee and elude a marked patrol vehicle, not the county's pursuit policy. The trial court sustained the objection and defense counsel moved on to a different line of questioning.

A party who complains about a restriction on cross-examination “ ‘must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying him the right to propound the questions.’ [Cit.]” Gober v. State, 249 Ga.App. 168, 172(3), 547 S.E.2d 656 (2001). However, after the trial court sustained the prosecutor's objection, Westmoreland abandoned his line of questioning and posed no objection to the trial court's ruling on the scope of his cross-examination. “Because ‘[e]rrors not raised in the trial court will not be heard on appeal [cit.],’ [cit.], [Westmoreland] has waived this [issue].” Pinckney v. State, 285 Ga. 458, 459(2), 678 S.E.2d 480 (2009).

3. Westmoreland claims that he was denied effective assistance of counsel at trial and on motion for new trial. In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant “must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. [Cit.]” White v. State, 283 Ga. 566, 569(4), 662 S.E.2d 131 (2008). We conclude Westmoreland failed to make the requisite showings.

(a) Westmoreland asserts that trial counsel was ineffective in failing to properly investigate and present evidence of Cobb County's policy concerning pursuit of a fleeing suspect.

Trial counsel testified at the hearing on the motion for new trial that he was familiar with the policy because he discussed it during trial with co-defendant's counsel, who was in possession of a copy. Counsel further testified that he did not believe “it was a good idea” to try to put the policy into evidence or to suggest to the jury that the conduct of the officers was the proximate cause of the fatality because he was attempting to convince the jury to acquit on the felony murder charges and to find Westmoreland guilty of a lesser offense; therefore, he feared such an argument would damage his credibility. We find this to be an informed strategic decision that any reasonable attorney would make under the circumstances. See generally Phillips v. State, 277 Ga. 161, 587 S.E.2d 45 (2003). Accordingly, counsel's actions do not amount to ineffective assistance. Id.

(b) In addition, Westmoreland asserts that his first post-conviction counsel was ineffective because he failed to attach to his motion for new trial a written addendum to Cobb County's vehicle pursuit policy which restricts vehicle chases in cases involving crimes such as burglary. We find no reasonable probability that such evidence, had it been introduced, would have resulted in a favorable ruling on the motion for new trial. See Crawford v. Thompson, 278 Ga. 517, 520, ...